of the European Law Institute

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Draft Legislative Proposal for the Prevention and Resolution of Conflicts of Jurisdiction in Criminal Matters in the European Union

Report of the European Law Institute

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Report

of the European Law Institute

Draft Legislative Proposals for the prevention and resolution of conflicts of jurisdiction in

criminal matters in the European Union

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The European Law Institute

The European Law Institute (ELI) is an independent non-profit organisation established to initiate, conduct and facilitate research, make recommendations and provide practical guidance in the field of European legal development. Building on the wealth of diverse legal traditions, its mission is the quest for better law-making in Europe and the enhancement of European legal integration. By its endeavours, the ELI seeks to contribute to the formation of a more vigorous European legal community, integrating the achievements of the various legal cultures, endorsing the value of comparative knowledge, and taking a genuinely pan- European perspective. As such its work covers all branches of the law: substantive and procedural; private and public.

The ELI is committed to the principles of comprehensiveness and collaborative working, thus striving to bridge the oft-perceived gap between the different legal cultures, between public and private law, as well as between scholarship and practice. To further that commitment it seeks to involve a diverse range of personalities, reflecting the richness of the legal traditions, legal disciplines and vocational frameworks found throughout Europe. The ELI is also open to the use of different methodological approaches and to canvassing insights and perspectives from as wide an audience as possible of those who share its vision.

President: Diana Wallis

Vice-President: Christiane Wendehorst Treasurer: Johan Gernandt

Speaker of the Senate: Irmgard Griss

European Law Institute Schottenring 16

1010 Vienna Austria

Tel.: + 43 1 4277 22101

Mail: [email protected] Website: www.europeanlawinstitute.eu ISBN: 978-3-9503458-7-2

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ACKNOWLEDGEMENTS

Working Group Reporters:

Prof. Katalin Ligeti (University of Luxembourg) Prof. John Vervaele(University of Utrecht) Prof. André Klip (University of Maastricht).

Working Group Members:

Mr. Miguel Carmona Ruano (Spanish Liaison Magistrate to the UK) Prof. Gilles Cuniberti (University of Luxembourg)

Prof. Burkhard Hess (Max Planck Institute - Luxembourg)

Mr. Hans-Holger Herrnfeld (former German national member of Eurojust - Criminal Law Department of the German Federal Ministry of Justice)

Ms. Andrea Kenez (Judge at the Metropolitan Court of Budapest) Prof. Michiel Luchtman (University of Utrecht)

Dr. Angelo Marletta (University of Luxembourg)

Prof. Dr. Holger Matt (Chair of the European Criminal Bar Association)

Mr. Jeannot Nies (Council of State; Office of the General Public Prosecutor – Luxembourg) Dr. Pietro Ortolani (Max Planck Institute – Luxembourg)

Dr. Gavin Robinson (University of Luxembourg) Dr. Michele Simonato (University of Utrecht)

Dr. Martin Wasmeier (European Commission – Legal Service) Representatives of Eurojust:

Ms. Catherine Deboyser (Eurojust Administration) Mr. José Guerra (Deputy National Member for Portugal) Ms. Maria Poza Cisneros (Deputy National Member for Spain) Mr. Pietro Suchan (Assistant to the Italian desk)

Representatives of the European Commission:

Ms. Anna Hodgson (DG Justice) Ms. Tania Schröter (DG Justice)

Representatives of the European Parliament:

Mr. Massimiliano Mini’ (Assistant to MEP Caterina Chinnici) ELI Advisory Committee

Jean-Philippe Rivaud (deputy Prosecutor General), France

Tim O’Sullivan (senior crown prosecutor at Crown Prosecution Service), UK Professor Anne Weyembergh (Université Libre de Bruxelles), Belgium Professor Petter Asp (Stockholm University), Sweden

Professor Dr. Martin Böse (Rheinische Friederich-Wilhelms University), Germany Professor Dr. A.A.H. van Hoek (University of Amsterdam), Netherlands

Professor Maria Kaiafa-Gbandi (Aristotle University of Thessaloniki), Greece Professor Dr. Helmut Satzger (Ludwig-Maximilians University), Germany Judge Margherita Cassano (president of the Court of Appeal of Florence), Italy

Judge Gabor Molnar (head of Panel at the Criminal Department of the Curia of Hungary), Hungary

The views set out in this Report should not be taken as representing the views of those bodies, on whose behalf individual members of the working party and advisory group were also acting.

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4 Principal abbreviations

AFSJ Area of Freedom, Security and Justice

CFR Charter of Fundamental Rights of the European Union OJ C 326, 26.10.2012, p. 391–

407

CJEU Court of Justice of the European Union

CoE Council of Europe

DG Justice European Commission Directorate-General for Justice

EAW European Arrest Warrant, established with Council Framework Decision 2002/584/JHA

ECHR European Convention of Human Rights

EIO European Investigation Order, established with Directive 2014/41/EU EJN The European Judicial Network in criminal matters

EPPO The European Public Prosecutor’s Office

FD Framework Decision

GC General Court of the European Union

MPI The Max Planck Institute

OLAF The European Anti-Fraud Office

TEU Treaty on European Union

TFEU Treaty on the Functioning of the European Union

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EXPLANATORY NOTE

1. Problem setting

When two or more states claim criminal jurisdiction to investigate, prosecute and adjudicate suspicious criminal conduct, a conflict between (legitimate) jurisdictions arises. Parallel criminal proceedings can endanger the “interests” of the persons involved, who may face the risk of double prosecution and punishment, as well as different legal regimes that determine the safeguards and remedies available to reduce uncertainty and lack of foreseeability. If several countries exercise jurisdiction over the same facts, it leads to efforts and resources being wasted and potentially to arbitrary outcomes.

In the specific context of the EU, in particular, concurrence of jurisdiction coupled with the application of the principle of European ne bis in idem can result in the prosecution of specific offences being barred on a “first come, first served” basis¹ if the authorities of one Member State finally dispose of the case, even though this Member State is not necessarily

“the best placed” to adjudicate the case. It is evident, therefore, that situations in which two or more states have concurrent jurisdictions over the same crime should be settled, or preferably, prevented.

2. Terminology

In general, the concept of a conflict refers to:

‘positive conflicts’, i.e. when two or more Member States exercise or intend to exercise their jurisdiction over certain facts constituting a criminal offence;

‘negative conflicts’, i.e. when between several Member States having jurisdiction over certain facts constituting a criminal offence, none of them is willing to exercise its jurisdiction. It is important to note that negative conflict does not refer to situations in which no state has jurisdiction, but rather to the situation in which no state is willing to exercise it.²

1 The principle of European ne bis in idem is enshrined in Article 54 of the Convention Implementing the Schengen Agreement of 1990, in Article 50 of the Charter of Fundamental Rights and in Article 4 of Protocol n. 7 to the European Convention on the Protection of Human Rights and Fundamental Freedoms. The Court of Justice of the European Union recognised the relevance of the principle and its application on the “first come, first served” basis in the seminal judgment Gözütok and Brügge (CJEU, 11 February 2003, C-187/01, joined cases Gözütok and Brügge; ECLI:EU:C:2003:87)

2 Similarly to the Anglo-American concept of forum non conveniens that allows for the discretion of courts to deny access when there is jurisdiction, also in criminal law there can be a gap between having jurisdiction and exercising it.

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It is, however, disputed whether this phenomenon belongs to the conceptual framework of jurisdictional conflict³.

‘parallel proceedings’, i.e. criminal proceedings which are conducted or are about to be conducted in two or more Member States, against the same suspect or accused regarding the same facts; if both parallel proceedings continue, it will certainly lead to a ne bis in idem situation.

‘multiple proceedings’, i.e. criminal proceedings which are conducted or are about to be conducted in two or more Member States against the same suspect or accused in relation to different facts, or against different suspects or accused persons in relation to the same set of facts. Although multiple proceedings do not violate ne bis in idem as they concern different facts, in the case of organised crime for instance, in order to adjudicate the crime it could make sense to concentrate proceedings that relate to various individual acts that the perpetrator may have performed in different jurisdictions, but which are all related to the same organised criminal activity. Another example concerns similar but separate offences (e.g.: several thefts) committed by the same person in the territory of different Member States.⁴ Due to the boundless reach of information technology, separate cybercrime offences in particular may cause harm across a great number of different jurisdictions (e.g.

hate speech, training of “lone wolf” terrorists, grooming of victims by sexual predators). In such cases, although not obligatory, a decision to concentrate proceedings in a single Member State may turn out to be opportune both in the interests of the suspect (possibility to attend a single trial and, in case of conviction, to serve the sentence in one Member State, potentially enhancing the chances of social rehabilitation) and of the good administration of justice (holding a single trial, possibility to adjudicate the whole series of crimes and, in case of conviction, to modulate the sentence in a proportionate way).

‘actual conflicts’, i.e. when concurrence of jurisdictions occurs in concreto and two or more parallel proceedings are actually run in two or more Member States;

‘abstract conflicts’, i.e. when concurrence of jurisdictions occurs only in abstracto since parallel proceedings are not yet started in two or more Member States.

For the purposes of this report, the term ‘criminal matter’ is understood as relating to the domain of criminal law stricto sensu. Accordingly, the proposed instrument is to be applied in criminal cases. However, the Member States are free to broaden the circle of authorities which they would consider competent to apply the proposed rules. In line with the Engel jurisprudence of the ECtHR⁵ that broadens the understanding of what is a

“criminal charge” and a “criminal sanction” and also includes punitive administrative

3 Indeed, some authors have defined the denial of (the exercise of) jurisdiction as an enforcement gap requiring a totally different approach. See, for instance, the opinion expressed by A. Klip, What is a conflict?

concept paper for the 2nd WG Group Meeting of the Project (March 2015).

4 A recent example is provided by the case of Melvin West, a UK national who was the subject of multiple European arrest warrants in connection with multiple thefts (of ancient and rare maps and valuable plates removed from atlases), all committed at libraries in three different Member States. See Case C-192/12 PPU West v. Virallinen syyttäjä, 28 June 2012, ECLI:EU:C:2012:404

5 ECtHR, Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22; criteria at §§ 82-83.

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sanctions and “quasi-criminal” proceedings⁶, it is up to the Member States to determine which authorities other than criminal justice authorities would be competent to apply the proposed rules.

Finally, the term ‘multi-territorial offences’ refers to offences that concern or affect the territory of two or more Member States; e.g. trafficking offences committed through the territory of several Member States. Multi-territorial offences can often trigger positive conflicts of territorial jurisdiction⁷.

This project and the three draft legislative proposals presented further below apply a broad definition of the concept of ‘conflict of jurisdiction’ that covers:

• Positive conflicts: The proposed legal framework will limit its focus to positive conflicts of jurisdiction, excluding from its scope the settlement of negative conflicts.

Addressing negative conflicts, in particular, would require reflection on the extent of the jurisdiction to prescribe and on the principle of mandatory prosecution. In this perspective, directly tackling this phenomenon would require the draft proposals to go beyond the scope of preventing and settling conflicts of “exercise” of jurisdiction.

The proposed legal framework will, nonetheless, to some extent allay the problem of negative conflicts by clarifying responsibilities in the exercise of criminal jurisdiction, including in situations where neither Member State wishes to prosecute.

• Parallel proceedings: The definition of ‘parallel proceedings’ does in principle cover both the pre-trial and trial stage. Parallel investigations, however, should in principle be allowed as they might turn out to be necessary in order to acquire the full picture, also in the perspective of the resolution of a conflict. What is most relevant is that parallel investigations are conducted in a fair and coordinated way and, in particular, do not end up in multiple prosecutions. The proposed legal framework will therefore not focus on or rule out parallel investigations but rather parallel prosecutions.

• Actual and abstract conflicts of jurisdiction;

• Multiple proceedings.

6 Ibid. The first criterion serves as a starting point: if domestic law classifies an offence as criminal, this is decisive. If not, the second criterion, which is considered more important (Jussila v. Finland [GC], § 38), is evaluated taking into consideration as appropriate the following factors : whether the legal rule in question is directed solely at a specific group or is of a generally binding character (Bendenoun v. France, § 47);

whether the proceedings are instituted by a public body with statutory powers of enforcement (Benham v.

the United Kingdom, § 56); whether the legal rule has a punitive or deterrent purpose (Öztürk v. Germany, § 53; Bendenoun v. France, § 47); whether the imposition of any penalty is dependent upon a finding of guilt (Benham v. the United Kingdom, § 56); and how comparable procedures are classified in other Council of Europe member States (Öztürk v. Germany §53). The second and third criteria are not necessarily cumulative; either the nature of the offence or the severity of punishment may invoke Article 6 ECHR (Lutz v. Germany, § 55; Öztürk v. Germany, § 54). This third criterion is determined by reference to the maximum potential penalty attached to the relevant provisions (Campbell and Fell v. the United Kingdom, § 72;

Demicoli v. Malta, § 34).

7 It emerged from the field research at Eurojust that the most frequent cases of conflicts of jurisdiction do actually arise from trafficking offences (drug trafficking, trafficking in human beings).

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Art. 82 (1) (b) TFEU refers to both the “prevention” and the “settlement” of conflicts of jurisdiction. This broad legal mandate has not been used to date in any concrete legislative proposal. This project is intended to provide options for legislative frameworks that could fill that legal gap.

3. Legislative gap in EU law: the background of the project

Although the problems described above also arise on a global scale, they increasingly pose a problem within the European Union. Art. 3 (2) TEU which states that “the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured” and the idea of European citizenship, enshrined in the Charter on Fundamental Rights (EUCFR), entails the right to a natural judge in the AFSJ and thereby sets requirements in relation to regulating jurisdiction conflicts in criminal matters.

Can individuals derive rights from Union Law (including the EUCFR and the related European Convention on Human Rights (ECHR)) when it comes to choice of jurisdiction or at least in order to protect themselves against double jeopardy in a transnational setting?

The issues of parallel proceedings and conflicting decisions have long been discussed and addressed in the field of international civil procedure. In countries belonging to the Civil Law tradition, such conflicts have traditionally been avoided through the doctrine of lis pendens, which forbids the court seized second of the same dispute to retain jurisdiction. In countries belonging to the Common Law tradition, such issues have been handled very differently through a variety of doctrines. The most prominent is forum non conveniens, which enables Common Law courts to compare courts and processes for the purpose of assessing which of the competing adjudicators is the most appropriate, and should therefore decide the dispute. In the EU, the civil law doctrine of lis pendens was adopted in civil and commercial matters as early as 1968. For 55 years, conflicts of jurisdiction have been successfully prevented or settled in civil and commercial matters by rules currently laid down in Regulation 1215/2012 (the Brussels I Regulation recast). Similar, although not identical, mechanisms have applied in matrimonial matters since the adoption of Regulation 2201/2003.

Today, even in the EU, there are no binding instruments establishing a mechanism to resolve conflicts of (exercising) jurisdiction in criminal matters. It is worth mentioning that as early as the 1960s experts within the Council of Europe (CoE) began work on a draft convention on conflicts of jurisdiction in criminal matters, dealing with competence, transfer of proceedings and ne bis in idem. As a result, in 1965 the Consultative Assembly of the CoE adopted Recommendation 420, establishing factors for a priority order of jurisdictions. Member States of the CoE, however, did not follow up on this recommendation, as they did not fully endorse the hierarchical order of jurisdictions as suggested in Recommendation 420.

Despite little support from European countries for an agreement on a mechanism for the prevention of jurisdiction conflicts in criminal matters, the CoE continued with its efforts to find an appropriate solution to the problem. In the 1970s, the CoE elaborated a Convention

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on the International Validity of Judgments (28 May 1970) and on the Transfer of Proceedings (15 May 1972). Although both conventions were forward-looking in their approach to resolving conflicts of jurisdiction, they received only a small number of ratifications⁸. Furthermore, they did not provide a shared, common and multilateral procedure for determining jurisdiction in criminal matters. Much more popular in the area of recognition of foreign judgements was the 1983 Convention on the Transfer of Sentenced Persons, to which no fewer than 65 states are party, including all Member States of the EU.

Even within the AFSJ, national authorities are free to initiate parallel national proceedings on the same case. In principle, national provisions on jurisdiction determine whether a Member State has the right to prosecute. However, important limits are set by the principle of ne bis in idem, enshrined in EU law and in the ECHR/EUCFR. It is especially the jurisprudence of the CJEU that has clarified this principle, and developed an autonomous transnational concept of ne bis in idem, independent from national laws of individual Member States.

Nevertheless, the principle of ne bis in idem has different features at the national and European levels. At the national level, it functions in a frame in which rules on jurisdiction are set and applied and it comes into play only if they lead to a conflict in which the suspect could be adversely affected. Conversely, at the European level there are no common rules on jurisdiction. However, several EU legal instruments requiring the criminalisation of certain conducts prescribe extraterritorial jurisdiction and thus trigger a potential conflict. This means that between different Member States, the risk of violation of ne bis in idem is much higher. The function of ne bis in idem converts into an instrument of jurisdiction priority on a

“first come, first served” basis (i.e. the first decision in one Member State bars a second prosecution against the same person on the same facts in another country). This rule is questionable to the extent that states competing in a race to be the first may not even be aware that they are in such a race. A case in point is provided by the criminal proceedings against M., in which investigations in Belgium and Italy ran in parallel and the final Belgian decision was taken 4 days before the trial in Italy started.⁹ According to the CJEU, the Belgian decision that there was no ground to refer the case to a trial court effectively barred the Italian authorities from initiating and conducting their proceedings.

This, however, in no way addresses the question of which jurisdiction is the most appropriate for the prosecution and adjudication of a suspect in the European AFSJ.

It is worth mentioning that some EU instruments (namely the 1995 Convention on the protection of European Communities’ financial interests, Framework Decision 2008/919/JHA on combating terrorism, and Framework Decision 2005/222/JHA on attacks against information systems) contain provisions suggesting coordination among the Member States

8 To date the 1970 CoE Convention on the International Validity of Criminal Judgments has been ratified by 23 Members of the Council of Europe, of which 13 are also Member States of the European Union (AT, BE, BG, CY, DK, EE, LV, LT, NL, RO, SI, ES, SE). To date, the 1972 CoE Convention on the Transfer of Proceedings in Criminal Matters has been ratified by 25 States of the Council of Europe. of which 13 are also Member States of the European Union (AT, BG, CY, CZ, DK, EE, LV, LT, NL, RO, SK, ES, SE)

9 CJEU, 5 June 2014, Case C-398/12, Criminal proceedings against M; ECLI:EU:C:2014:1057

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in order to decide which of them will prosecute. However, they do not provide for any specific procedures in that regard.

Within the EU, the first effective attempt to provide for coordination in order to prevent conflicts of jurisdiction was developed by Eurojust. In 2003, Eurojust issued guidelines for deciding which jurisdiction should prosecute.¹⁰ These guidelines set out certain factors to be applied when solving conflicts of jurisdiction between Member States’ authorities. They are applied at the meetings, held at Eurojust, between the national authorities for investigation and prosecution involved in a given cross-border case. However, the main limitations of these guidelines are clearly visible. Above all, since they have no binding effect, Member States are not obliged to comply with them. Also, importantly, interested persons are not involved, so the “forum choice” is essentially made by the prosecuting authority without notifying or consulting the interested persons, or taking into account their interests.

In 2005, the European Commission launched a consultation on conflicts of jurisdiction in criminal matters, including the principle of ne bis in idem. The result was the “Green Paper on Conflicts of Jurisdiction and the Principle of ne bis in idem in Criminal Proceedings”, published on 23 December 2005.¹¹ The Green Paper, as well as the related working paper,¹² identified and analysed the main problems in this field, envisaging a mechanism of consultation among Member States leading to the potential solution of a conflict of jurisdiction.

The outcome of the Commission’s efforts was the Council Framework Decision on prevention and settlement of conflicts of exercise of jurisdiction in criminal proceedings, adopted on 30 November 2009, just before the entry into force of the Lisbon Treaty. The Framework Decision establishes a procedural framework for reaching consensus on which Member States should investigate and prosecute a case. Where it is not possible to reach consensus, the matter shall, where appropriate, be referred to Eurojust. The adoption of this Framework Decision, however, is not sufficient to prevent conflicts of jurisdiction. First, no binding criteria are established¹³ as to how the decision should be made when choosing the best place for prosecution. Second, the outcome of the consultation proceedings is not binding and the Framework Decision provides no instruments to enforce it. Third, there is the danger that the defendants and the victims are deprived of their rights, as there is no possibility to contest the final decision on jurisdiction.

In light of the existing legal framework, one may conclude that: a) even today there are no binding rules “preventing” conflicts of jurisdiction nor mechanisms to solve conflicts of jurisdiction when parallel proceedings already exist in two or more Member States; b) the

10 Eurojust Guidelines for Deciding “Which Jurisdiction Should Prosecute?”, included in the Annex to the Eurojust Annual Report 2003 (The Hague, February 2004).

11 European Commission, Green Paper on Conflicts of Jurisdiction and the Principle of ne bis in idem in Criminal Proceedings, 23.12.2005, COM(2005) 696 final.

12 European Commission staff working document, Annex to the Green Paper on conflicts of jurisdiction and the principle of ne bis in idem in criminal proceedings, cit.

13 The current Framework Decision 2009/948/JHA refers vaguely to the Eurojust Guidelines in the recitals (Recital 9) but not in the enacting terms.

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approach adopted so far at EU level has been strongly based on the concept of a “nation state”, its sovereignty to exercise criminal jurisdiction and to apply national law; c) the CJEU has elaborated the autonomous concept of transnational ne bis in idem in the AFSJ.

Although conflicts of jurisdiction have been kept out of both the Stockholm Programme¹⁴ and the Post Stockholm Guidelines,¹⁵ it is likely that this issue will re-emerge on the European agenda, as it is mentioned explicitly in Art. 82 TFEU and linked to the mandatory objectives of the AFSJ, according to which “the Union shall offer its citizens an area of freedom, security and justice without internal frontiers, in which the free movement of persons is ensured” (Art. 3 (2) TEU).

In particular, three provisions are of utmost importance as regards conflicts of jurisdiction:

First, Article 82 TFEU provides a legal basis for the European Parliament and the Council to adopt measures to prevent and settle conflicts of jurisdiction between Member States.¹⁶ Second, Article 85 TFEU is dedicated to Eurojust’s mission “to support and strengthen coordination and cooperation between national investigating and prosecuting authorities in relation to serious crimes affecting two or more Member States or requiring a prosecution on common bases”. In this regard, future developments are foreseen: “the European Parliament and the Council, by means of regulations adopted in accordance with the ordinary legislative procedure, shall determine Eurojust’s structure, operation, field of action and tasks”. Among those tasks is the “resolution of conflicts of jurisdiction”.¹⁷ Finally, Article 86 TFEU provides for the establishment of a European Public Prosecutor’s Office and the Commission presented the related proposal in 2013.¹⁸ According to the current outcome of the negotiations, the EPPO shall, where several Member States’ courts have jurisdiction for the case, choose as the forum for indictment the Member State where the “focus of the criminal activity” is. However, the draft EPPO Regulation allows for the possibility of duly justified deviations from that principle, taking into account a sequential order of criteria (place of habitual residence of the suspect, nationality of the suspect and place where the main financial damage occurred).¹⁹

14 European Council, the Stockholm Programme – An open and secure Europe serving and protecting citizens, OJ C115/1, 4.5.2010.

15 European Council, “Strategic guidelines for legislative and operational planning for the coming years within the area of freedom, security and justice”, in European Council, Conclusions - 26/27 June 2014, EUCO 79/14 (Brussels, 27 June 2014).

16 Article 82 (1) (b) TFEU provides for the possibility to adopt “measures” on the prevention and settlement of conflicts of jurisdiction. The general reference to “measures” potentially allows for the adoption of both directives and regulations and, differently from paragraph 2 of the same article, it is not limited to

“minimum rules”. Furthermore, the adoption of measures on conflicts of jurisdiction is not subject to the

“emergency brake” procedure provided by paragraph 3 of article 82 TFEU.

17 The Commission Proposal for a Regulation on Eurojust, COM (2013) 535 final, envisaged the possibility for Eurojust to adopt a written decision on conflicts of jurisdiction. In the course of Council negotiations, however, the non-binding nature of such a decision was agreed upon (see Article 4 (4) of the current negotiating text of the Regulation on Eurojust, Council Doc. 6643/15 of 27 February 2015).

18 European Commission, Proposal for a Council Regulation on the establishment of the European Public Prosecutor’s Office, Brussels, 17.7.2013, COM(2013) 534 final.

19 See Artt. 30 par. 2 and 22 parr. 4 and 5 of the Council Doc. 112774/2/16 of 12 October 2016 .

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4. Requirements to comply with fundamental rights

Given that post-Lisbon the EUCFR has assumed constitutional status, any legislative ambitions relating to the AFSJ, such as those emanating from this Report, ought to respect, reflect and foster its core provisions and values. Of those provisions, the right to an effective remedy and to a fair trial, set out in Article 47 CFR, is perhaps the most directly related to the proposals at hand. One of its core features is foreseeability: Article 47 provides inter alia that “everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law”. The latter clause – “tribunal previously established by law” – is of especial relevance in cases of parallel proceedings²⁰ where the jurisdiction in which a suspect is to be prosecuted is unclear and may remain undecided for an unacceptably long period of time.

In this regard, all three draft legislative models set out further below improve upon the limited approach of FD 2009/948/JHA notably by establishing a clear procedure with time-limits and, in the case of the vertical model, by envisaging a new role for Eurojust, which could include the power to adopt a binding decision on the choice of forum.

Foreseeability, moreover, could be relevant also in the perspective of substantive legality spelled out in Article 49 CFR. The core principle enshrined in Article 49 is that no one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national law or international law at the time when it was committed.²¹ Insofar as the choice of jurisdiction determines the applicability of different national substantive provisions, a new clear framework for that choice would contribute to making the applicable substantive law reasonably foreseeable (including the concrete definition of the offence, the level of the penalties and of the other consequences of conviction²²).

In addition to the rights laid down in the EUCFR, the Council adopted in 2009 the Roadmap for strengthening procedural rights of suspected or accused persons in criminal

20 On the relevance of foreseeability of the choice of jurisdiction within the Area of Freedom, Security and Justice, see M. Panzavolta, Choice of Forum and the Lawful Judge Concept, in M. Luchtman (Ed.), Choice of Forum in Cooperation Against EU Financial Crime. Freedom, Security and Justice and the Protection of Specific EU-Interests, Eleven, 2013, p. 159

21 Article 49(1) CFR. The provision thereby impliedly prohibits retroactive criminalisation, as well as expressly prohibiting the retroactive increase of criminal penalties. Moreover, the severity of penalties must not be disproportionate to the criminal offence [Art. 49(3)].

22 On the relationship between substantive legality, foreseeability and choice of forum, see M. Luchtman, Choice of Forum and the Prosecution of Cross-Border Crime in the European Union – What role for the Legality Principle?, in M. Luchtman (Ed.), Choice of Forum in Cooperation Against EU Financial Crime, cit., p.

46.

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proceedings.²³ To date, the Roadmap has inspired the promulgation of three directives:

Directive 2010/64/EU on the right to interpretation and translation in criminal proceedings, Directive 2012/13/EU on the right to information in criminal proceedings, and Directive 2013/48/EU on the right to access a lawyer.

The significance of these Directives is often heightened in parallel proceedings involving – in addition to the Member State or nationality or residence of the suspect – at least one and frequently two or more unfamiliar foreign jurisdictions, where the ensuring of an adequate defence must clear a series of practical hurdles. All stages of proceedings, ranging from initial information about the accusation, through access to adequate legal representation, to grasping and influencing unfolding events in the courtroom can be greatly complicated by the involvement of judicial authorities from multiple Member States with different languages and divergent criminal laws.

Whilst the directives have already somewhat redressed these disadvantages, the draft legislative models set out further below provide for the involvement of the accused person in consultations underway in order to determine the appropriate jurisdiction, thereby further implementing the rationale of Directive 2012/13/EU. In addition, the suspect is entitled to submit written observations in the course of consultations on the choice of forum procedure. Finally, it is worth underlining that in the vertical mechanism the accused person may trigger the involvement of Eurojust in order to resolve a conflict of jurisdiction.

5. Added value of a new legislative instrument

The construction of a tangible AFSJ in the EU entails the strengthening of the fundamental rights of people living in this area. Important among these fundamental rights is the right not to be prosecuted in different jurisdictions for the same facts. Furthermore, the good administration of justice would require a rational and non-arbitrary regulation of the exercise of jurisdiction. The abovementioned gaps and problems cast light on the need for new legislative solutions to conflicts of jurisdiction.

First, the added value of a new legal framework could be measured with regard to the interests of the good administration of justice in a broader sense: for the Member States, a coherent regulation of the exercise of jurisdiction could avoid the random and arbitrary effects of the principle of ne bis in idem. Indeed, currently the ‘first come, first served’ rule according to which the ne bis in idem principle operates does not take into account other relevant interests (e.g. state/national security interests or the interests of the victim) and may lead to a situation in which the first Member State acquits because of lack of evidence, where another Member State could have convicted.²⁴ A new legal instrument, instead, could provide a procedural framework to consider and balance the relevant interests before a ne bis in idem situation is irremediably determined.

23 Council Resolution of 30 November 2009, Roadmap for strengthening procedural rights of suspected or accused persons in criminal proceedings, OJ 4.12.2009 C295/1.

24 CJEU, Case C-467/04, Gasparini and Others [2006] ECR I-9199.

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Following the entry into force of the Lisbon Treaty and, in particular, the new constitutional role thereby acquired by the EUCFR, the current legal framework on conflicts of jurisdiction needs to be aligned with the fundamental rights obligations stemming from EU law.

In this regard, a new legal instrument could also deliver added value with regard to the position of the suspect, providing more foreseeability and fairness by allowing for the involvement of the defence and the victim in the settlement of a conflict of jurisdiction. Such involvement is currently absent from the EU legal framework.

Secondly - and more specifically - a new legal instrument might also provide added value with regard to the existing FD 2009/948/JHA by overcoming the flaws of its horizontal and limited approach (open-ended and non-binding nature of the consultations, non- consideration of the issue of multiple proceedings) and by reinforcing the right to a judge

“previously established by law”, meaning a right to a reasonably foreseeable forum²⁵. In this perspective, a new role for Eurojust, which could include the power to adopt a binding decision on the choice of forum, could be envisaged and contribute to enhancing foreseeability.

6. Project objectives and ELI’s mission

The Member States’ approach to criminal justice is traditionally based on national sovereignty, by which there is a direct link between the national definition of the crimes and related criminal procedural provisions (the applicable law) and the jurisdictional competence (mostly based on territoriality). The European integration process and in particular the free movement of persons and the constitutional objective of developing an AFSJ goes beyond the idea of this exclusive link between national sovereignty, applicable law and criminal jurisdiction. The shared sovereignty in the EU legal order has consequences not only for the applicable law (through harmonisation) but also for existence of jurisdiction and the use of it.

By striving for a common European judicial space based on mutual trust²⁶ and European citizenship,²⁷ where rights and obligations can be enforced by Member State authorities with an EU-wide effect, as well as by EU bodies and agencies, the exercise of criminal jurisdiction cannot be defined only on the basis of the prerogatives of sovereign nation states.

25 As required by art. 47 par. 2 CFR. On the relevance of foreseeability of the choice of jurisdiction within the Area of Freedom, Security and Justice, see M. Panzavolta, Choice of Forum and the Lawful Judge Concept, in M. Luchtman (Ed.), Choice of Forum in Cooperation Against EU Financial Crime. Freedom, Security and Justice and the Protection of Specific EU-Interests, Eleven, 2013, p. 159

26 See CJEU, Opinion 2/13 of the Court (Full Court) on Accession of the European Union to the European Convention for the Protection of Human Rights and Fundamental Freedoms, 18 December 2014, para 191;

Cases: C-187/01 and C-385/01 Gözütok and Brügge [2003] ECR I-1345; Cases C-411/10 and C-493/10, N. S.

and Others and M. E. and Others [2011] ECR I-13905; Case C-399/11 Melloni [2013] EU:C:2013:107; and Case C-129/14 PPU Spasic [2014] ECLI:EU:C:2014:739.

27 Ligeti, K. and Marletta, A. (2016), ‘EU Criminal Justice Actors: Accountability and Judicial Review vis-à-vis the EU Citizen, New Journal of European Criminal Law, 2016(2): 175-189.

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This project aims at elaborating a new legal framework for the prevention and resolution of conflicts of jurisdiction in criminal matters in the AFSJ. With particular regard to the legislative gaps underlined above, the project team considered a complex set of objectives for a new legal framework. A coherent solution for conflicts of jurisdiction within the AFSJ should at least: a) avoid that ne bis in idem remains the only rule to resolve jurisdictional conflicts; b) ensure a non-arbitrary choice of jurisdiction; c) avoid parallel prosecutions; and aim at d) ensuring the choice of the best forum.

In delivering such solutions, the project aims at improving EU Law and developing the AFSJ, thereby contributing to the ELI’s objectives. The ELI’s mandate to promote better law- making and to enhance European legal integration is fully mirrored in the project’s philosophy. A genuine pan-European perspective and the value of comparative knowledge are embedded in the research design, which features a Working Group of experts coming from different legal traditions, as well as academic and professional backgrounds.

Furthermore, the involvement of representatives from the European institutions and agencies (European Commission, European Parliament, Eurojust) and from civil society (European Criminal Bar Association) in the discussion was intended to ensure comprehensiveness and a broader understanding of the issue and of the interests at stake.

7. Project methodology: three legislative models for the EU

This ELI project is carried out at the University of Luxembourg in cooperation with the Max Planck Institute Luxembourg (MPI) by an international team composed of practitioners and academics, in both the private law and criminal law fields, coming from different EU countries.

Since the project began in June 2014, five working group meetings have been held (4-5 November 2014, 12-13 March 2015, 1-2 September 2015, 18-19 February 2016, 21-22 June 2016). The working group meetings

• refined the project methodology,

• discussed the practical problems of conflicts of jurisdiction based on extensive field research carried out by the working group members in cooperation with Eurojust,

• carried out an in-depth comparison with international private law,

• elaborated the three proposed legislative models.

Several input papers prepared by the working group members enriched the discussions as well as the involvement of policy makers (in particular the representatives of DG Justice) and practitioners (in particular, Eurojust and the European Criminal Bar Association). In addition, the three project Reporters met three times in order to refine the drafts (2 December 2015;

11 May 2016; 15 July 2016).

The interim results of the project were presented to the ELI Members on four separate occasions:

• before the Members Consultative Committee on 4 September 2013 in Vienna,

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• before the Members Consultative Committee on 26 September 2014 in Zagreb,

• before the Members Consultative Committee on 4 September 2015 (a Meeting of the Working Group of the Project took place in Vienna on the occasion of the ELI Annual Conference),

• before a meeting of the ELI Council on 12 February 2016 in Vienna.

Following extensive field research, expert consultations and comparisons with international private law, the project proposes three legislative models for preventing and solving conflicts of criminal jurisdiction in the AFSJ. All approaches only propose building blocks for a future legislative text. They are not blueprints for future legislation but contain, rather, the most important elements of the mechanism they represent and thereby offer various implementation options for the EU legislator. It is possible for the EU legislator to take an in- between step and develop a proposal that combines elements of, for instance, the horizontal and vertical mechanisms.

The three legislative models reflect different levels of approximation and thereby three distinct policy options, leaving the choice open to the EU legislator.

Each legislative model is an ideal-type with an inherent logic and each corresponds to a broader regulatory approach which it translates into a concrete legislative instrument. The three regulatory approaches underlying the prevention and settlement of conflicts of criminal jurisdiction in the AFSJ are as follows:

• horizontal mechanism: conflicts of jurisdiction are solved between the national criminal justice authorities of the concerned Member States. The horizontal mechanism relies on cooperation and coordination between national criminal justice authorities as to the exercise of their jurisdiction. Such coordination is based on the principle of mutual trust between the Member States. It implies the duty of national authorities to share information and to coordinate with each other as well as to notify each other about parallel proceedings in order to prevent and settle conflicts of jurisdiction.

• vertical mechanism: The vertical mechanism relies on a binding supranational decision in cases where coordination between the national criminal justice authorities has failed. The vertical mechanism relies on the principle of sincere cooperation deriving from Union loyalty between national and EU authorities. It implies the duty of national authorities to share information and to coordinate with each other and with Eurojust, as well as to notify each other and Eurojust about parallel proceedings in order to prevent and solve conflicts of jurisdiction.

• mechanism for the allocation of criminal jurisdiction in the AFSJ: conflicts of jurisdiction are prevented by establishing uniform European rules on the allocation of the exercise of criminal jurisdiction in the AFSJ.

The three regulatory approaches serve as an analytical framework or ideal-type for developing the legislative models. Each regulatory approach entails a variety of normative

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options for its implementation. The project develops only one legislative model within each regulatory approach. The concrete features of the proposed legislative models are carefully chosen by the project team in order to best illustrate the spectrum of EU intervention. The horizontal mechanism requires only minimum approximation of national criminal laws: it primarily aims at coordinating non-approximated national criminal jurisdictions. Only the factors and the procedure for coordination are defined by EU rules. Conversely, the mechanism for the allocation of the exercise of criminal jurisdiction in the EU requires uniform EU rules on forum choice in the AFSJ and embodies a strong harmonisation. The vertical mechanism stands in between the two other regulatory approaches. Although it has lower ambitions in terms of approximation than the allocation mechanism, it empowers a supranational body with binding EU-wide decision-making powers for resolving conflicts of criminal jurisdiction. This supranational binding decision is a European decision motivated by a European prosecutorial policy. In that sense the vertical mechanism challenges national priorities in exercising criminal jurisdiction. The mechanism on the allocation of criminal jurisdiction has the broadest objective as it aims to prevent conflicts in the exercise of criminal jurisdiction in the AFSJ. It requires the development of a single unified set of factors for allocating jurisdiction, but it does not impact the Member States’ jurisdiction to prescribe.

8. Factors for deciding between competing jurisdictional claims

Both the horizontal and vertical mechanisms provide for deciding between competing jurisdictional claims based on a set of factors. It is important to note that neither the horizontal nor the vertical mechanism seeks to establish a hierarchical list of jurisdictional claims. Nor does the proposed new legal framework for solving conflicts of jurisdictions in criminal matters follow the hard and fast private international law rule of lis pendens alibi as expressed in the Brussels I (recast) Regulation. Instead, the framework for criminal law is more akin to the forum non conveniens doctrine in Anglo-American private international law both as regards the distinction between having jurisdiction and exercising it and as regards the discretionary element to decide between competing jurisdictional claims.

The comparison with private international law highlighted the shortcoming of the lis pendens mechanism: It is rigid and open to abuse through so called torpedo actions started with the purpose of frustrating litigation elsewhere. Its rigidity may lead to a race to court, thereby frustrating attempts to reach a consensual solution. And the court being granted priority might not be the court best placed to deal with the case. In fact, the transnational ne bis in idem principle as developed by the CJEU has much in common with the drawbacks of the Brussels I system of lis pendens. Although the situation in criminal law is different, inter alia, because the decision to open a prosecution is not a decision of the parties (claimant), but the prerogative of the state, it seems that much of the criticism levelled at the rigidity of the lis pendens rule and of the transnational European ne bis in idem principle could also be raised in relation to a strict hierarchy of jurisdictional claims in criminal law.

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A strictly hierarchical priority order, in the end, may not deliver a suitable solution for the domain of criminal justice, where different sets of interests (the public interest of the State in punishing crime while ensuring a fair trial, the opposing private interests of the defendant and the victims) may compete and require a case-by-case approach.

9. Horizontal mechanism

This legislative model follows – as a starting point – the rationale of FD 2009/948/JHA.

Accordingly, it is the primary responsibility of the Member States to resolve conflicts of criminal jurisdiction among each other within the framework of a consultation procedure. It can thus be immediately distinguished from both the vertical mechanism entailing a binding decision of a supranational body (Eurojust) on the choice of forum – when such horizontal consultations reach an impasse or inertia – and the allocation model which envisions the autonomous application of concrete rules for determining criminal jurisdiction without requiring – in principle – that any horizontal consultation take place.

The horizontal model offers several implementation options (9.1). The implementation options featured in the proposed legislative model (9.2) reflect certain choices made by the project team in order to best illustrate the features of the horizontal mechanism.

9.1. Implementation options

9.1.1. Options for the objectives of the instrument:

One may distinguish between three different objectives of the horizontal mechanism:

a) Avoiding that conflicts of jurisdiction are solved only by the ne bis in idem rule and thereby ensuring a non-arbitrary choice of the forum to prosecute: the Member State that finally disposes of a case first is not always the one actually better placed to adjudicate the case; for instance, an acquittal for lack of evidence might occur because witnesses are located on the territory of another Member State;

b) Avoiding parallel prosecutions;

c) Ensuring the choice of the best forum to prosecute: such a choice relates to the allocation of jurisdiction on the basis of an assessment of the various interests at stake.

It might indeed occur that a Member State other than the territorial State is best placed to adjudicate the case: for instance when the crime has been committed during a short stay abroad (a holiday trip) and the suspect, the victim and the witnesses are citizens or residents of another Member State (a “tourist scenario”).

The first two objectives - avoiding conflicts of jurisdiction in order to ensure a non-arbitrary choice and avoiding parallel prosecutions - represent a baseline with a view to the objectives of Art. 82 TFEU. The choice of the best forum to prosecute requires the resolution of a series

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of complex questions (what is the “best forum”, what should be the factors for the choice, etc…) that the project does not address in the horizontal mechanism.

9.1.2. Options for the concept of conflict

As explained above, the concept of a conflict covers both parallel and multiple proceedings.

In addition, the implementation of the horizontal mechanism offers a narrow and a broad perspective:

a) The narrow perspective is limited to “actual” conflicts, where two or more proceedings are run in parallel in different Member States;

b) The broader perspective could also address potential conflicts, where parallel proceedings might be conducted in different Member States (abstract conflicts). The broader approach would thus also have a clear preventive rationale.

9.1.3. Factors for deciding between competing jurisdictional claims

The horizontal mechanism relies on agreed European factors for deciding between Member States’ competing jurisdictional claims. Currently, the relevant criteria are set out in the 2003 Eurojust Guidelines. In order to be in conformity with the EUCFR and the Lisbon Treaty, the project proposes to update these guidelines. The project proposes to restructure and streamline the Guidelines and to add a negative list of factors that may not be taken into consideration when determining the proper jurisdiction.

Taking into account the conclusions of the Eurojust Strategic Seminar on Conflicts of Jurisdiction,²⁸ the following amendments and updates are suggested:

• The factors should reflect the relevant instruments of mutual recognition such as the European Arrest Warrant (EAW)²⁹ and the European Investigation Order (EIO)³⁰ that have been adopted since 2003. These instruments impact some of the criteria listed in the Eurojust Guidelines.

• For instance, the EAW and Framework Decision 2008/909 on custodial sentences accord secondary importance to the location of the accused. Similarly, the entry into force of the EIO and the new opportunities it offers for video or telephone conferencing (Articles 24 and 25) make the attendance of witnesses unnecessary.

• Following a suggestion from Eurojust, the territoriality and personality factors could also be reworded to ensure that not only their quantitative dimension is duly considered, but also their qualitative dimension..

28 Eurojust Strategic Seminar, Conflicts of Jurisdiction, Transfer of Proceedings and Ne Bis In Idem: Successes, Shortcomings and Solutions, The Hague, 4 June 2015. See esp. Conclusions of Workshop 2, pp 7-8.

29 Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States, 2002/584/JHA, OJ L190/1, 18.7.2002.

30 Directive 2014/41/EU of the European Parliament and of the Council of 3 April 2014 regarding the European Investigation Order in criminal matters, OJ L130/1, 1.5.2014.

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• The definition of territoriality, in particular, should not be limited to the place ‘where the majority’ of the criminality or loss occurred but should also allow for consideration of the place where the ‘most important’ part of the criminality or loss has taken place. We go beyond the traditional concept of territoriality and also include state interests.

• Similarly, where several co-defendants can be identified, not only should their number be relevant, but also their respective roles in the commission of the crime and their respective locations.

• The stage of proceedings in the Member States involved (relative “trial-readiness”) as a factor for deciding which Member State should continue is currently missing from the Eurojust Guidelines and should be taken into account. It is underlined that “trial- readiness” is not to be construed as a general evaluation of the procedural efficiency of any given national system.

• Finally, a “negative list” could be inserted, including the inadmissible factors:

following the current matrix of the Guidelines, such factors are “evidential problems”, “legal requirements” and “sentencing powers”.

It is important to underline that a decision to concentrate proceedings does not entail the admissibility of evidence transmitted from one jurisdiction to another. By the same token, the burden of proof in any given Member State shall not constitute a reason for the allocation a case. With this in mind, in order to discourage prosecutors from “shopping around” for the most convenient forum from their perspective alone, the threshold of admissibility of evidence – as opposed to its availability – in any given Member State is included in the list of factors not to be considered in deliberations over the choice of forum (in Annex to each proposed model).

9.1.4. Regarding the transparency of the factors

In order to ensure the transparency and clarity of the factors applied by the national authorities in the consultation procedure, it is possible to:

• Leave the Eurojust Guidelines as soft law,

• Transform the Eurojust Guidelines into “hard law” through inclusion in the legislative draft, albeit whilst maintaining a case-by-case assessment of the factors (no hierarchical list),

• Establish a hierarchical list of factors of case allocation.

9.1.5. As to formalising the consultation procedure

When formalising the consultation procedure, it is possible that the rules applicable to the consultation procedure:

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• Do not provide for the involvement of the suspect or the victim as is the case currently pursuant to FD 2009/948/JHA;

• Provide for a limited involvement of the suspect or the victim;

• Provide for the full involvement of the suspect and the victim. This option would require, however, a higher degree of formalisation of the procedure (rules on access to the file and to information, or a formalised hearing within the consultation procedure).

9.1.6. Regarding the content of the consultation procedure As for the content of the consultations, it is possible to imagine:

• A consultation about the determination of the Member State that should carry on the prosecution

• A request from the judicial authority of one Member State to the judicial authority of another Member State to take over the prosecution of a case as the latter is better placed to do so.

9.1.7. Regarding the parties to the consultation procedure

The consultation procedure in the horizontal mechanism is by definition between the national authorities of the concerned Member States. It is possible that only the national authorities participate in the horizontal consultation. However, as the national authorities may ask Eurojust to help and to convene a consultation meeting, it is also possible under the current framework decision to involve Eurojust as a mediator³¹.

9.1.8. Regarding the outcome of the consultation procedure As to the outcome of the consultation procedure, it is possible to:

• Make a generic reference to achieving “any effective solution”, without stipulating an obligation for the judicial authorities to reach consensus and without providing for consequences in case the consultation fails, as is the case today based on FD 2009;

• Make a reference to achieving a solution, whereby preference should be given to the concentration of the proceedings whenever possible and requiring a formal agreement, delineating the circumstances and the factors considered. This option would, however, not provide for consequences in case the consultation fails;

• To stipulate an obligation to issue a formal agreement, delineating the circumstances and the factors considered, whereby preference should be given to the concentration of the proceedings whenever possible. This option would include consequences in case the consultation fails.

31 Currently, Article 12 of the FD 2009/948/JHA and Articles 6 and 7 of the Decision 2009/426/JHA (Eurojust Decision) allow for the involvement of Eurojust as a mediator when conflicts of jurisdiction arise or “are likely to arise”.

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9.1.9. Options for judicial review As to judicial review, it is possible to:

• Avoid any express mention of judicial review. The silence of the new instrument on judicial review would, however, not impact the obligations of the Member States under Article 47 (1) EUCFR to ensure the right to an effective remedy.

• Include a general reference in the new instrument on the need to ensure the judicial review of the decision by the national judge.

9.2. Proposed legislative instrument

Among the implementation options set out above, the project team decided to opt for the following choices:

• Its aim is to prevent ne bis in idem violations and ensure a non-arbitrary choice of forum,

• It covers both actual and potential conflicts,

• It addresses both parallel and multiple proceedings,

• It refers to the amended Eurojust Guidelines as guidance for the assessment of the specific circumstances of the individual case,

• It provides for a limited involvement of the suspect and the victim in the consultation procedure,

• It obligates the national authorities to conclude a formal agreement on the solution of the conflict, delineating the circumstances and the factors considered, whereby preference should be given to the concentration of the proceedings whenever possible,

• It clarifies the need for judicial review of the formal agreement before the national judge (of the Member State where the prosecution is eventually conducted). National law should determine the procedural rules for the review.

• It provides rules for the transfer of proceedings and of evidence.

9.3. Added value of the proposed horizontal legislative model

This legislative model aims at a consultation procedure that improves the current state of affairs, providing for more consistency and legal certainty. It is not limited to “Lisbonising”

Framework Decision 2009/948/JHA. Although the system will remain horizontal, EU law will define both the procedure and the factors to be applied in the consultation procedure.

Most importantly, by explicitly referring to the Eurojust Guidelines in the proposed Directive, the application of those factors may be subject to judicial review. An effective remedy against arbitrary decisions will be granted to the defendant before the competent national courts.

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In addition, unlike Framework Decision 2009/948/JHA the scope of the proposed instrument is not limited to parallel proceedings, but based on a broader understanding of the notion of

‘conflict’, it also addresses multiple proceedings.

Article 82 (1) (b) leaves the choice between Regulations and Directives. The adoption of a Directive seems to be more consistent with the limited objective of this legislative model.

10. Vertical mechanism

The vertical mechanism goes beyond the horizontal philosophy of the current legal framework by involving Eurojust. It focuses on the settlement of conflicts of jurisdiction.

Horizontal consultation between the national judicial authorities remains the first step, but will be complemented by a supranational procedure conducted by Eurojust in case of failure to reach an agreement to settle the conflict.

Eurojust’s involvement, which may be triggered by either (or any) of the involved Member States or by the suspect, is the key distinguishing feature of the vertical model vis-à-vis both the horizontal and allocation models. The Eurojust decision on choice of forum is a binding judicial decision, taken in accordance with a detailed and transparent procedural framework provided in the model. It may be subject to judicial review before the CJEU.

10.1. Implementation options

The implementation options of the vertical mechanism largely correspond to those of the horizontal mechanism outlined in 9.1. However, the supranational decision of Eurojust offers additional implementation options.

10.1.1. Regarding the involvement of Eurojust For the involvement of Eurojust, it is possible

• To maintain the current role of Eurojust, i.e. coordination and assistance upon request of the involved national authorities;

• To develop the complementary role of Eurojust, providing for its ex officio intervention or empowering the Member States, the suspect or accused person and the victim with the possibility of triggering a decision by Eurojust in case the consultation between the concerned national authorities has led to no decision.

10.1.2. Regarding the outcome of the intervention of Eurojust As to the outcome of Eurojust intervention, it is possible:

• That Eurojust adopts a written and reasoned non-binding opinion or recommendation,

• That Eurojust takes a written and reasoned binding decision.

of the European Law Institute

Draft Legislative Proposal for the Prevention and Resolution of Conflicts of Jurisdiction in Criminal Matters in the European Union

Report of the European Law Institute

Report

of the European Law Institute

Draft Legislative Proposals for the prevention and resolution of conflicts of jurisdiction in

criminal matters in the European Union

The European Law Institute

ACKNOWLEDGEMENTS

CONTENTS

EXPLANATORY NOTE